<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 30, 1995
------------------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
--------------------- ---------------------
Commission file number 1-11556
-------------------------------------------------------
UNI-MARTS, INC.
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 25-1311379
- -------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
477 East Beaver Avenue, State College, PA 16801-5690
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(814) 234-6000
- -------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
- -------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
----- -----
6,299,071 Common Shares were outstanding at March 30, 1995.
This Document Contains 57 Pages.
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<TABLE>
UNI-MARTS, INC. AND SUBSIDIARIES
INDEX
<CAPTION>
PART I. FINANCIAL INFORMATION
- ------------------------------ PAGE(S)
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets -
March 30, 1995 and September 30, 1994 3-4
Consolidated Statements of Earnings -
Quarter Ended and Two Quarters Ended
March 30, 1995 and March 31, 1994 5
Consolidated Statements of Cash Flows -
Two Quarters Ended March 30, 1995 and
March 31, 1994 6-7
Notes to Consolidated Financial Statements 8-10
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations 11-13
PART II. OTHER INFORMATION
- --------------------------
Item 4. Submission of Matters to a Vote of
Security Holders 13-14
Item 6. Exhibits and Reports on Form 8-K 14
Exhibit Index 16
</TABLE>
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<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<CAPTION>
March 30, September 30,
1995 1994
------------ -------------
(Unaudited)
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash $ 8,584,777 $ 8,533,265
Marketable equity securities (at
market in 1995, cost $375,200; at
cost in 1994, market $582,900) 337,698 572,166
Accounts receivable, less allowances
of $105,700 and $582,100 2,559,292 2,168,649
Inventories 15,743,290 15,108,457
Prepaid expenses and other 2,457,578 2,019,255
----------- -----------
TOTAL CURRENT ASSETS 29,682,635 28,401,792
PROPERTY, EQUIPMENT AND IMPROVEMENTS -
at cost, less accumulated depreciation
and amortization of $35,120,000 and
$32,956,000 57,374,027 56,883,848
INTANGIBLE AND OTHER ASSETS 7,596,595 7,750,798
----------- -----------
TOTAL ASSETS $94,653,257 $93,036,438
=========== ===========
</TABLE>
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<PAGE> 4
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(CONTINUED)
<CAPTION>
March 30, September 30,
1995 1994
------------ -------------
(Unaudited)
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C>
CURRENT LIABILITIES:
Accounts payable $16,633,323 $14,440,175
Accrued expenses 6,864,442 6,030,584
Current maturities of long-term debt 3,264,692 6,851,260
Current obligations under capital leases 99,352 98,864
----------- -----------
TOTAL CURRENT LIABILITIES 26,861,809 27,420,883
LONG-TERM DEBT, less current maturities 32,008,179 32,121,021
OBLIGATIONS UNDER CAPITAL LEASES,
less current maturities 783,674 833,400
DEFERRED TAXES 2,871,400 2,806,800
DEFERRED INCOME AND OTHER LIABILITIES 1,641,861 1,051,311
STOCKHOLDERS' EQUITY:
Common Stock, par value $.10 a share:
Authorized 15,000,000 shares
Issued 7,007,471 and 6,996,498 shares,
respectively 700,747 699,650
Additional paid-in capital 22,979,750 22,897,804
Retained earnings 10,593,806 9,035,050
----------- -----------
34,274,303 32,632,504
Less Treasury Stock, at cost -
708,400 and 722,238 shares of Common
Stock, respectively ( 3,787,969) ( 3,829,481)
----------- -----------
30,486,334 28,803,023
----------- -----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $94,653,257 $93,036,438
=========== ===========
</TABLE>
See notes to consolidated financial statements
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<PAGE> 5
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
<CAPTION>
QUARTER ENDED TWO QUARTERS ENDED
March 30, March 31, March 30, March 31,
1995 1994 1995 1994
------------ ----------- ------------ ------------
<S> <C> <C> <C> <C>
REVENUES:
Merchandise sales $40,163,489 $41,499,151 $ 83,771,918 $ 85,725,555
Petroleum sales 32,299,081 29,528,886 68,047,396 63,561,547
Dairy sales 0 5,302,150 0 10,494,832
Other income 689,228 399,335 1,236,316 1,093,866
----------- ----------- ------------ ------------
73,151,798 76,729,522 153,055,630 160,875,800
----------- ----------- ------------ ------------
COSTS AND EXPENSES:
Cost of sales 52,645,562 55,551,658 111,066,322 116,830,208
Selling 15,782,412 16,708,159 31,410,862 33,618,364
General and administrative 1,638,526 1,716,134 3,269,860 3,410,286
Depreciation and amortization 1,345,905 1,475,937 2,682,937 3,006,062
Interest 832,956 815,572 1,619,886 1,674,857
----------- ----------- ------------ ------------
72,245,361 76,267,460 150,049,867 158,539,777
----------- ----------- ------------ ------------
EARNINGS BEFORE INCOME TAXES 906,437 462,062 3,005,763 2,336,023
INCOME TAXES 345,200 ( 6,886) 1,101,000 650,314
----------- ----------- ------------ ------------
NET EARNINGS $ 561,237 $ 468,948 $ 1,904,763 $ 1,685,709
=========== =========== ============ ============
EARNINGS PER SHARE $ 0.09 $ 0.07 $ 0.30 $ 0.24
=========== =========== ============ ============
DIVIDENDS PER SHARE $ 0.0275 $ 0.0250 $ 0.0550 $ 0.0500
=========== =========== ============ ============
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 6,290,853 6,908,114 6,285,007 6,899,574
=========== =========== ============ ============
</TABLE>
See notes to consolidated financial statements
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<PAGE> 6
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<CAPTION>
TWO QUARTERS ENDED
March 30, March 31,
1995 1994
-------------- --------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Cash received from customers and others $153,101,466 $160,737,605
Cash paid to suppliers and employees ( 143,409,234) ( 155,006,945)
Dividends and interest received 88,929 98,633
Interest paid ( 1,616,564) ( 1,698,617)
Income taxes paid ( 1,262,600) ( 1,042,209)
------------ ------------
NET CASH PROVIDED BY OPERATING
ACTIVITIES 6,901,997 3,088,467
CASH FLOWS FROM INVESTING ACTIVITIES:
Receipts from sale of capital assets 121,735 356,970
Purchase of property, equipment and
improvements ( 2,987,285) ( 1,209,744)
Net receipts for sales and purchases
of marketable securities 209,725 243,995
Additional borrowing - note receivable
from officer ( 37,896)
Net cash advanced for intangible and other
assets ( 113,130) ( 93,178)
------------ ------------
NET CASH USED IN INVESTING ACTIVITIES ( 2,768,955) ( 739,853)
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments under revolving credit
agreement ( 2,000,000) ( 1,000,000)
Principal payments on debt ( 1,748,648) ( 3,614,967)
Proceeds from issuance of common stock 13,125 37,750
Dividends paid to stockholders ( 346,007) ( 345,252)
------------ ------------
NET CASH USED BY FINANCING ACTIVITIES ( 4,081,530) ( 4,922,469)
------------ ------------
NET INCREASE (DECREASE) IN CASH 51,512 ( 2,573,855)
CASH:
Beginning of period 8,533,265 9,779,105
------------ ------------
End of period $ 8,584,777 $ 7,205,250
============ ============
</TABLE>
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<PAGE> 7
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(CONTINUED)
(Unaudited)
<CAPTION>
TWO QUARTERS ENDED
March 30, March 31,
1995 1994
---------- ----------
<S> <C> <C>
RECONCILIATION OF NET EARNINGS TO NET CASH
PROVIDED BY OPERATING ACTIVITIES:
NET EARNINGS $1,904,763 $1,685,709
ADJUSTMENTS TO RECONCILE NET EARNINGS TO
NET CASH PROVIDED BY OPERATING ACTIVITIES:
Depreciation and amortization 2,682,937 3,006,062
Loss (gain) on sale of marketable securities 24,743 ( 127,731)
Loss on sale of capital assets and other 71,197 173,185
Change in assets and liabilities:
Increase in:
Accounts receivable ( 390,643) ( 142,398)
Inventories ( 634,833) ( 191,746)
Prepaid expenses ( 212,123) ( 445,473)
Increase (decrease) in:
Accounts payable and accrued expenses 3,027,006 ( 683,508)
Deferred income taxes and other
liabilities 428,950 ( 185,633)
---------- ----------
TOTAL ADJUSTMENTS TO NET EARNINGS 4,997,234 1,402,758
---------- ----------
NET CASH PROVIDED BY OPERATING ACTIVITIES $6,901,997 $3,088,467
========== ==========
</TABLE>
See notes to consolidated financial statements
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<PAGE> 8
UNI-MARTS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
A. FINANCIAL STATEMENTS:
The consolidated balance sheet as of March 30, 1995, the consolidated
statements of earnings for the quarter and two quarters ended March 30, 1995
and March 31, 1994 and the consolidated statements of cash flows for the two
quarters ended March 30, 1995 and March 31, 1994 have been prepared by Uni-
Marts, Inc. (the "Company") without audit. In the opinion of management,
all adjustments (which include only normal recurring adjustments) necessary
to present fairly the financial position of the Company at March 30, 1995
and the results of operations and cash flows for all periods presented have
been made.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted. It is suggested that these
consolidated financial statements be read in conjunction with the financial
statements and notes thereto included in the Company's Annual Report on Form
10-K for the fiscal year ended September 30, 1994. The results of
operations for the interim periods are not necessarily indicative of the
results to be obtained for the full year.
B. INTANGIBLE AND OTHER ASSETS:
Intangible and other assets consist of the following:
<TABLE>
<CAPTION>
March 30, September 30,
1995 1994
----------- -------------
<S> <C> <C>
Goodwill $ 6,498,671 $ 6,498,671
Lease acquisition costs 1,674,483 1,674,483
Non-competition agreements 1,213,040 1,213,040
Other 1,772,297 1,647,520
----------- -----------
11,158,491 11,033,714
Less accumulated amortization 3,561,896 3,282,916
----------- -----------
$ 7,596,595 $ 7,750,798
=========== ===========
</TABLE>
Goodwill represents the excess of costs over fair value of net assets
acquired in business combinations and is amortized on a straight-line basis
over periods of 5 to 40 years. Lease acquisition costs are the bargain
element of acquired leases and are being amortized on a straight-line basis
over the related lease terms. Non-competition agreements are amortized over
the terms of the particular agreements.
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<PAGE> 9
C. INTERIM CREDIT FACILITIES:
The Company has a $13.5 million revolving credit agreement with a bank group
at the bank's prime rate or a fixed rate option at the Company's election,
with a maximum of $3.5 million available for issuance of letters of credit.
The revolving credit facility is committed for a two-year period expiring
February 28, 1997 or a later date as approved by the bank group. At March
30, 1995, borrowings of $4.0 million and letters of credit of $2.3 million
were outstanding under the agreement.
D. LONG-TERM DEBT:
<TABLE>
<CAPTION>
March 30, September 30,
1995 1994
----------- -------------
<S> <C> <C>
Term Loan. Interest is paid quarterly.
Principal on the note will be repaid in 16
quarterly installments beginning October 31,
1997. The blended interest was 8.500% at
March 30, 1995. $16,741,488 $16,805,316
Senior Notes of the Company. Interest is
paid in semiannual installments at a
blended rate of 10.50%. Principal on the
notes will be repaid in eight semiannual
installments. 12,170,068 13,703,402
Revolving Credit Agreement. Interest is paid
quarterly. At March 30, 1995, the interest
rate was 9.000%. (See Note C) 4,000,000 6,000,000
Mortgage Loans Payable. Paid in monthly
installments expiring in years 1997 through
2004 with interest ranging from the bank's
prime rate to the bank's prime rate plus
one-half percent. The blended interest
was 9.313% at March 30, 1995. 2,361,315 2,460,328
Various Equipment Financing. Repaid in
fiscal 1995. 3,235
----------- -----------
35,272,871 38,972,281
Less current maturities 3,264,692 6,851,260
----------- -----------
$32,008,179 $32,121,021
=========== ===========
</TABLE>
The mortgage loans are collateralized by $6,688,200 of property, at cost.
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<PAGE> 10
Aggregate maturities of long-term debt during the next five years, including
payments due in connection with the senior notes and the term loan, are as
follows:
September 30, 1995 $ 1,632,000
1996 3,265,000
1997 8,129,000
1998 7,433,000
1999 6,060,000
-----------
$26,519,000
===========
Certain of the Company's debt agreements contain covenants which provide for the
maintenance of minimum working capital and net worth, as well as limitations on
future indebtedness, sales and leasebacks and dispositions of assets. These
agreements may restrict the Company's ability to declare and pay dividends on
common stock. The amount of retained earnings available for such dividends at
March 30, 1995 was $5,762,800.
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<PAGE> 11
<TABLE>
ITEM 2.
UNI-MARTS, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Set forth below are selected unaudited consolidated financial data of the Company for the
periods indicated:
<CAPTION>
QUARTER ENDED TWO QUARTERS ENDED
March 30, March 31, March 30, March 31,
1995 1994 1995 1994
----------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
STATEMENTS OF EARNINGS DATA:
Sales and other income by the
Company and its franchisees:
Merchandise sales $40,163,489 $41,499,151 $ 83,771,918 $ 85,725,555
Petroleum sales 32,299,081 29,528,886 68,047,396 63,561,547
Dairy sales 0 5,302,150 0 10,494,832
Other income 689,228 399,335 1,236,316 1,093,866
----------- ----------- ------------ ------------
Total 73,151,798 76,729,522 153,055,630 160,875,800
Cost of sales 52,645,562 55,551,658 111,066,322 116,830,208
----------- ----------- ------------ ------------
Gross profit 20,506,236 21,177,864 41,989,308 44,045,592
Selling 15,782,412 16,708,159 31,410,862 33,618,364
General and administrative 1,638,526 1,716,134 3,269,860 3,410,286
Depreciation and amortization 1,345,905 1,475,937 2,682,937 3,006,062
Interest 832,956 815,572 1,619,886 1,674,857
----------- ----------- ------------ ------------
Earnings before income taxes 906,437 462,062 3,005,763 2,336,023
Income taxes 345,200 ( 6,886) 1,101,000 650,314
----------- ----------- ------------ ------------
Net earnings $ 561,237 $ 468,948 $ 1,904,763 $ 1,685,709
=========== =========== ============ ============
Earnings per share $ 0.09 $ 0.07 $ 0.30 $ 0.24
=========== =========== ============ ============
OPERATING DATA (CONVENIENCE STORES ONLY):
Average, per store, for stores open two
full comparable periods:
Merchandise sales $ 99,783 $ 100,697 $ 208,004 $ 206,309
Petroleum sales $ 106,550 $ 95,929 $ 225,643 $ 207,207
Gallons of petroleum sold 108,272 108,691 225,637 229,637
Total gallons of petroleum sold 32,201,770 32,345,741 67,063,870 68,754,989
Gross profit per gallon
of petroleum $ 0.130 $ 0.122 $ 0.140 $ 0.129
Stores at beginning of period 415 435 417 444
Stores added 1 1
Stores closed 2 4 4 13
Stores at end of period 414 431 414 431
Company-operated stores 372 384 372 384
Franchisee-operated stores 42 47 42 47
Locations with self-service gasoline 300 303 300 303
</TABLE>
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<PAGE> 12
RESULTS OF OPERATIONS:
Matters discussed below should be read in conjunction with "Statements of
Earnings Data" and "Operating Data (Convenience Stores Only)" on the preceding
page.
QUARTERS ENDED MARCH 30, 1995 AND MARCH 31, 1994
- ------------------------------------------------
Revenues for the quarter ended March 30, 1995 decreased by $3,578,000, or 4.7%,
compared to the quarter ended March 31, 1994. The decline in revenues resulted
from the sale of the Company's dairy operation on April 1, 1994 and fewer stores
in operation during the second fiscal quarter of the current year. Dairy sales
for the quarter ended March 31, 1994 were $5,302,000 compared to $0 for the
quarter ended March 30, 1995. Merchandise sales declined by $1,336,000, or
3.2%, primarily as a result of fewer stores in operation. Petroleum sales
increased by $2,770,000, or 9.4%, as a result of an 11.4% increase in the
average selling price per gallon. Other income increased by $290,000.
Gross profits on merchandise sales increased by $421,000 due to higher gross
profit rates. Gross profits on petroleum sales were $153,000 higher in the
current fiscal year's second quarter as a result of higher gross profits per
gallon. There were no gross profits on dairy sales in the current year compared
to $1,534,000 in the prior year.
Selling expense, general and administrative expense and depreciation and
amortization declined by $926,000, $78,000 and $130,000, respectively, in the
second quarter of fiscal year 1995 compared to the same quarter in 1994. These
declines are due to expense reductions resulting from the April 1994 dairy
operation sale offset in part by expense increases in convenience store
operations. Interest expense increased by $17,000 as a result of higher
interest rates in 1995.
Earnings before income taxes increased by $444,000 in the second quarter of the
current year compared to the prior year's second quarter. This increase
resulted primarily from higher merchandise and petroleum gross profits in the
1995 second fiscal quarter. Income taxes increased by $352,000. This
disproportionate increase is attributable to nonrecurring tax adjustments in the
prior year related to the sale of the dairy assets. Net earnings increased by
$92,000, or 19.7%.
TWO QUARTERS ENDED MARCH 30, 1995 AND MARCH 31, 1994
- ----------------------------------------------------
Revenues in the first two quarters of fiscal year 1995 were $153,056,000, a
decrease of $7,820,000 from the comparable period of fiscal year 1994. The
decline resulted from no dairy sales in the current year due to the April 1994
sale of the Company's dairy operation compared to dairy sales of $10,495,000 in
the same period of fiscal 1994. Merchandise sales at the Company's convenience
stores decreased by $1,954,000, or 2.3%, as a result of fewer stores in
operation. Sales at comparable stores increased 0.8%. Petroleum sales
increased $4,486,000, or 7.1%, due to higher retail prices per gallon sold.
Other income increased by $142,000.
Gross profits on merchandise sales increased by $472,000 due primarily to higher
gross profit rates. Petroleum gross profits increased by $449,000 due to higher
gross profits per gallon. Since there were no dairy sales in the current year,
gross profits on dairy sales declined by $3,120,000. Total gross profits
declined by $2,056,000.
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<PAGE> 13
Selling expense, general and administrative expense and depreciation and
amortization decreased by $2,208,000, $140,000 and $323,000, respectively.
Interest expense decreased $55,000, or 3.3%, due to savings caused by lower
borrowing levels partially offset by higher interest rates.
Net earnings before income taxes increased by $670,000, or 28.7%, to $3,005,800.
Income taxes increased by $451,000. The disproportionate increase in income
taxes is due to nonrecurring tax effects in the prior year's sale of the
Company's dairy operation. Net earnings increased by $219,000, or 13.0%.
LIQUIDITY AND CAPITAL RESOURCES:
Most of the Company's sales are for cash and its inventory turns over rapidly.
As a result, the Company's daily operations do not require large amounts of
working capital. From time to time, the Company utilizes substantial portions
of its cash and interim credit facilities to acquire and construct new stores.
Capital requirements for the balance of fiscal year 1995 include debt and
capital lease payments of approximately $1,700,000 and capital expenditures of
approximately $5,300,000. The Company anticipates that cash presently available
and cash generated from operations will be sufficient to fulfill its cash
requirements.
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Annual Meeting of Stockholders of Uni-Marts, Inc. was held on February 23,
1995 at which the following matters were voted upon:
(1) Amendment of the Company's Certificate of Incorporation deleting the
reference to the size of the Board of Directors.
(2) Amendment of the Company's Stock Option Plan to provide for grants of
shares of Common Stock and non-qualified stock options to non-employee
directors.
(3) Election of four directors to serve until the Annual Meeting of
Stockholders in 1998.
(4) Ratification of the appointment of independent auditors.
The results of the votes on the matters considered at the Annual Meeting of
Stockholders are set forth below:
Amendment of Certificate of Incorporation:
Votes Votes Votes Broker
"For" "Against" "Abstain" Non-Votes
--------- --------- --------- ---------
4,523,867 1,256,954 9,877 0
Amendment of the Company's Stock Option Plan:
Votes Votes Votes Broker
"For" "Against" "Abstain" Non-Votes
--------- --------- --------- ---------
4,506,745 1,268,043 15,910 0
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<PAGE> 14
Election of directors:
Votes Votes Broker
"For" "Withheld" Non-Votes
--------- ---------- ---------
J. Kirk Gallaher 5,781,899 8,799 0
G. David Gearhart 4,730,515 1,060,183 0
Jeremiah A. Keating 5,778,399 12,299 0
Charles R. Markham 5,781,349 9,349 0
Ratification of appointment of Deloitte & Touche LLP as independent auditors:
Votes Votes Votes Broker
"For" "Against" "Abstain" Non-Votes
--------- --------- --------- ---------
5,778,358 8,171 4,169 0
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS
3.1 Amended and Restated Certificate of Incorporation.
3.2 Amended and Restated By-Laws of Uni-Marts, Inc.
10.1 Uni-Marts, Inc. Amended and Restated Equity Compensation Plan.
10.2 Amendment No. 4 to Credit Agreement between the Bank Group and
Uni-Marts, Inc. dated as of March 27, 1995.
11 Statement regarding computation of per share earnings.
27 Financial Data Schedule.
(b) REPORTS ON FORM 8-K
The Company did not file any reports on Form 8-K during the
quarter ended March 30, 1995.
-14-
<PAGE> 15
SIGNATURES
- ----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Uni-Marts, Inc.
------------------------------------
(Registrant)
Date May 12, 1995 /S/ HENRY D. SAHAKIAN
------------- ------------------------------------
Henry D. Sahakian
Chairman of the Board
(Principal Executive Officer)
Date May 12, 1995 /S/ J. KIRK GALLAHER
------------- ------------------------------------
J. Kirk Gallaher
Executive Vice President, Director
and Chief Financial Officer
(Principal Accounting Officer)
(Principal Financial Officer)
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<PAGE> 16
<TABLE>
UNI-MARTS, INC. AND SUBSIDIARIES
EXHIBIT INDEX
<CAPTION>
Number Description Page(s)
- ------ ----------- -------
<S> <C> <C>
3.1 Amended and Restated Certificate of
Incorporation. 17-26
3.2 Amended and Restated By-Laws of Uni-Marts, Inc. 27-42
10.1 Uni-Marts, Inc. Amended and Restated Equity
Compensation Plan. 43-52
10.2 Amendment No. 4 to Credit Agreement between the
Bank Group and Uni-Marts, Inc. dated as of
March 27, 1995. 53-54
11 Statement regarding computation of per share
earnings. 55-56
27 Financial Data Schedule. 57
</TABLE>
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<PAGE> 17
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
UNI-MARTS INC.
We, Henry D. Sahakian, the Chairman of the Board of
Directors of Uni-Marts Inc., and Harry A. Martin, the Secretary of
Uni-Marts Inc. (the "Corporation"), a corporation existing under
the laws of the State of Delaware, do hereby certify under the seal
of the Corporation as follows:
1. The present name of the corporation is Uni-Marts
Inc. The date of filing of the original Certificate of
Incorporation with the Secretary of State of the State of Delaware
is January 26, 1977.
2. This Amended and Restated Certificate of
Incorporation has been adopted in accordance with the provisions of
Section 242 and Section 245 of the General Corporation Law of the
State of Delaware.
3. The adopted Amended and Restated Certificate of
Incorporation is as follows:
FIRST: The name of the Corporation is Uni-Marts,
Inc.
SECOND: Its registered office in the State of Delaware is
located at 1013 Centre Road, in the City of Wilmington, County of
New Castle, Delaware 19805. The name of its registered agent at
such address is Corporation Service Company.
THIRD: The general nature of the business or businesses to
be transacted by the Corporation, together with and in addition to
those powers conferred by the laws of the State of Delaware and the
principles of common law upon corporations organized and existing
under and by virtue of the laws of Delaware shall be a follows, to-
wit:
To engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
FOURTH: The aggregate number of shares which the Corporation
shall have authority to issue is 15,000,000 shares of Common Stock,
par value $.10 per share (the "Common Stock").
<PAGE> 18
PART I
------
(A) The authority of the Board of Directors to provide
for the issuance of any shares of the Corporation's capital stock
shall include, but shall not be limited to, authority to issue
shares of capital stock of the Corporation for any purpose and in
any manner (including issuance pursuant to rights, warrants, or
other options) permitted by law, for delivery as all or part of the
consideration for or in connection with the acquisition of all or
part of the outstanding securities of another corporation or
enterprise, irrespective of the amount by which the issuance of
such capital stock shall increase the number of shares outstanding
(but not in excess of the number of shares authorized).
(B) No holder of any share or shares of any class of
capital stock of the Corporation shall have any preemptive right to
subscribe for any shares of capital stock of any class of the
Corporation now or hereafter authorized or for any securities
convertible into or carrying any optional rights to purchase or
subscribe for any shares of capital stock of any class of the
Corporation now or hereafter authorized, but any such shares of
capital stock of any class, or securities convertible into or
carrying any optional rights to purchase or subscribe for any
shares of capital stock of any class of the Corporation, may be
issued and disposed of pursuant to resolution or resolutions of the
Board of Directors of the Corporation to such person, firms,
corporations or associations upon such terms as may be deemed
advisable by the Board of Directors of the Corporation in the
exercise of its discretion. The Corporation may from time to time
issue its shares of capital stock of any class for such
consideration as may be fixed by the Board of Directors, and may
receive in payment thereof, in whole or in part, cash, labor done,
services rendered, personal property or real property or leases
thereof. In the absence of actual fraud in the transaction, the
judgment of the Board of Directors as to the value of such labor,
services, personal property, real property or leases thereof shall
be conclusive. Any and all shares of capital stock so issued for
which the consideration so fixed shall have been paid or delivered
shall be deemed fully paid capital stock and shall not be liable to
any further call or assessment thereon, and the holders thereof
shall not be liable for any further payment in respect thereof.
(C) Dividends respecting any shares of capital stock of
the Corporation shall be payable only out of earnings or assets of
the Corporation legally available for the payment of such dividends
and only as and when declared by the Board of Directors of the
Corporation.
-2-
<PAGE> 19
PART II
-------
(A) The holders of the Common Stock shall be entitled to
vote on the removal, with or without cause, of any director.
(B) Any vacancy in the office of a director either (i)
may be filled by the vote of the holder of Common Stock or (ii) if
the by-laws or applicable laws permit, any such vacancy may be
filled by the remaining directors then in office, even though less
than a quorum, or by a sole remaining director. Any director
elected by the stockholders or by the board of directors to fill a
vacancy shall serve until the end of the full unexpired term of the
vacating director and until his or her successor has been elected
and has been qualified.
(C) Advance notice of nominations for the election of
directors other than nominations by the Board of Directors or a
Committee thereof, shall be given in the manner provided in the by-
laws.
(D) The Board of Directors of the Corporation may
declare and pay dividends on the Common Stock out of earnings or
assets of the corporation legally available for the payment
thereof.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not
be subject to the payment of corporate debts to any extent
whatsoever.
SEVENTH: In furtherance and not in limitation of the
powers conferred by statute, the Board of Directors is expressly
authorized:
(a) By vote of a majority of all such directors, to
amend from time to time as the said Board deems necessary or
convenient, the by-laws of this Corporation.
(b) To fix and determine whether any, and if any
what part, of the net profits of this Corporation in excess of its
capital shall be declared in dividends and paid to the stockholders
and to determine whether any, and if any what part, of the net
profits of this Corporation shall be held and retained by this
Corporation, and to set apart out of any of the funds of the
Corporation available for dividends a reserve or reserves for
any proper purpose and to abolish any such reserve in the manner in
which it was created.
-3-
<PAGE> 20
(c) To authorize and cause to be executed mortgages
and other instruments upon encumbering the real and personal
property of the Corporation.
(d) When and as authorized by affirmative vote
given at a meeting or by the written consent of stockholders of
record holding at least a majority of, the stock entitled to vote
on such proposal, to sell, lease or exchange all of the property
and assets of the Corporation, including its good will and its
corporate franchises or any property or assets essential to its
corporate business, upon such terms and conditions as the Board of
Directors deems expedient.
(e) By resolution passed by a majority of the whole
board, to designate one or more committees, each committee to
consist of two or more of the directors of the Corporation, which,
to the extent provided in the resolution or in the by-laws of the
Corporation, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it, which committee or
committees shall have such name or names as may be stated in the
by-laws of the Corporation or as may be determined from time-to-
time by resolution adopted by the Board of Directors; provided,
however, that all functions of the Board of Directors of the
Corporation with respect to the executive officers of the
Corporation, including, without limitation, the authority to engage
and discharge such executive officers and the responsibility of
supervising such executives in the discharge of their duties are
hereby delegated to Henry D. Sahakian or the then current Chairman
of the Board or such committee or committees as shall be designated
by him.
(f) To oppose a tender offer, or other offer for
the Corporation's securities, whether the offer is in cash or in
the securities of a corporation or otherwise. When considering
whether to oppose an offer, the Board of Directors may, but is not
legally obligated to, consider any pertinent issue. By way of
illustration, but not of limitation, the Board of Directors may,
but shall not be legally obligated to, consider any or all of the
following:
(1) whether the offer is acceptable based on
historical and present operating results
or the financial condition of the Corporation
and its subsidiaries, and their future
prospects;
-4-
<PAGE> 21
(2) whether a more favorable offer could be
obtained for the Corporation, or its
Subsidiaries, securities or assets in the
future;
(3) the social, economic or any other material
impact which an acquisition of the
Corporation, or substantially all of its
assets, would have upon the employees and
customers of the Corporation and its
subsidiaries and the communities which they
serve;
(4) the reputation and business practice of the
offeror and its management and affiliates as
they would affect the employees and customers
of the Corporation and its subsidiaries and
the future value of the Corporation's stock;
(5) the value of securities (if any) when the
offeror is offering in exchange for the
Corporation's, or its subsidiaries,
securities or assets based on an analysis of
the worth of the Corporation, or of its
subsidiaries, as compared to the offeror
corporation or other entity whose securities
are being offered; and
(6) any antitrust or other legal or regulatory
issues that are raised by the offer.
(g) if the Board of Directors determines that an
offer should be rejected, it may take any lawful action to
accomplish its purposes including, but not limited to, any or all
of the following: advising shareholders not to accept the offer;
litigation against the offeror; filing complaints with all
government and regulatory authorities; acquiring the corporation's
securities; selling or otherwise issuing authorized but unissued
securities or treasury stock or granting options with respect
thereto; acquiring a company to create an antitrust or other
regulatory problem for the offeror; and/or obtaining a more
favorable offer from another individual or entity.
EIGHTH: Meetings of stockholders and directors may be
held outside the State of Delaware, if the by-laws so provide. The
books of the Corporation may be kept (subject to any provision
contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time to time by the Board
of Directors or in the by-laws of the Corporation. Elections of
directors and officers need not be by ballot unless the bylaws of
the Corporation shall so provide.
-5-
<PAGE> 22
NINTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate
of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
TENTH: No contract or other transaction between this
Corporation and any other corporation and no other act of the
Corporation shall, in the absence of fraud, in any way be affected
or invalidated by the fact that any of the directors of the
Corporation are pecuniarily or otherwise interested in, or are
directors or officers of, such other corporation. Any director of
the Corporation individually or any firm or association of which
any director may be a member, may be a party to, or may be
pecuniarily or otherwise interested in, any contract or transaction
of the Corporation, provided that the fact that he individually or
such firm or association is so interested shall be disclosed or
shall have been known to the Board of Directors or a majority of
such members thereof as shall be present at any meeting of the
Board of Directors at which action upon any such contract or
transaction shall be taken. Any director of the Corporation who is
also a director or officer of such other corporation or who is so
interested may be counted in determining the existence of a quorum
at any meeting of the Board of Directors which shall authorize any
such contract or transaction, and may vote thereat to authorize any
such contract or transaction, with like force and effect as if he
were not such director or officer of such other corporation or not
so interested. Any director of the corporation may vote upon any
contract or other transaction between the Corporation and any
subsidiary or affiliated corporation without regard to the fact
that he is also a director of such subsidiary or affiliated
corporation.
Any contract, transaction or act of the Corporation or of
the directors, which shall be ratified by a majority of a quorum of
the stockholders of the Corporation at any annual meeting, or at
any special meeting called for such purpose, shall, insofar as
permitted by law, be as valid and as binding as though ratified by
every stockholder of the Corporation; provided, however, that any
failure of the stockholders to approve or ratify any such contract,
transaction or act, when and if submitted, shall not be deemed in
any way to invalidate the same or deprive the Corporation, its
directors, officers or employees, of its or their rights to proceed
with such contract, transaction or act.
ELEVENTH: The Corporation shall have the power to enter
into agreement with its stockholders providing generally for
restrictions on the right of stockholders to sell or otherwise
dispose of any of the stock of this Corporation, and/or providing
for obligations upon the Corporation and/or the stockholders to
purchase the stock of this Corporation under certain conditions,
all such agreement to contain such terms and conditions as may be
-6-
<PAGE> 23
agreed upon by the Board of Directors of the Corporation and the
other parties to said agreements, provided that notice of any such
agreement restricting a stockholder's right to dispose of such
stock is set forth upon each certificate representing the shares of
stock subject to such agreement.
TWELFTH: Whenever a compromise or arrangement is
proposed between this Corporation and its creditors or any class of
them and/or between this Corporation and its stockholders or any
class of them, any court of equitable jurisdiction within the State
of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholders thereof, or on the
application of any receiver or receivers appointed for this
Corporation under the provisions of section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution or
of any receiver or receivers appointed for this Corporation under
the provisions of section 279 of Title 8 of the Delaware Code order
a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the
case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the creditors
or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on
this Corporation.
THIRTEENTH: (a) The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Corporation) by reason of
the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
-7-
<PAGE> 24
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem
proper.
(c) To the extent that a director, officer,
employee or agent of the Corporation has been successful on the
merits or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b), or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him
in connection therewith.
(d) Any indemnification under subsections (a) and
(b) (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because he has met the applicable
standard of conduct set forth in subsections (a) and (b). Such
determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) by the stockholders.
-8-
<PAGE> 25
(e) Expenses incurred by an officer or director in
defending a civil or criminal action, suit or proceeding may be
paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified
by the Corporation as authorized in this section. Such expenses
incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems
appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under
any by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) The Corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under
the provisions of this section.
(h) The invalidity or unenforceability of any
provision hereof shall not in any way affect the remaining portions
hereof, which shall continue in full force and effect.
FOURTEENTH: No director shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach
of fiduciary duty by such director as a director. Notwithstanding
the foregoing sentence, a director shall be liable to the extent
provided by applicable law (i) for breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct
or a known violation of law, (iii) pursuant to Section 174 of the
Delaware General Corporation Law or (iv) for any transaction from
which the director derived an improper personal benefit. No
amendment to or repeal of this Article shall apply to or have any
effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
-9-
<PAGE> 26
IN WITNESS WHEREOF, the undersigned, being the duly
authorized Chairman of the Board of Uni-Marts Inc., has executed
this Amended and Restated Certificate of Incorporation by and on
behalf of Uni-Marts Inc., and the duly authorized Secretary of Uni-
Marts Inc., has attested the execution of this Amended and Restated
Certificate of Incorporation and has affixed the corporate seal
hereto, all on the 23rd day of February, 1995.
UNI-MARTS INC.
By: /S/ HENRY D. SAHAKIAN
---------------------------
Henry D. Sahakian
Chairman of the
Board of Directors
(Corporate Seal)
ATTEST:
By: /S/ HARRY A. MARTIN
----------------------------
Harry A. Martin
Secretary
-10-
<PAGE> 27
AMENDED AND RESTATED
BY-LAWS
OF
UNI-MARTS, INC.
A Delaware Corporation
<PAGE> 28
<TABLE>
TABLE OF CONTENTS
-----------------
<CAPTION>
PAGE
ARTICLE I Offices ----
- --------- -------
<S> <C> <C>
Section 1 Registered Office 1
Section 2 Additional Offices 1
ARTICLE II Meetings of Stockholders
- ---------- ------------------------
Section 1 Place of Meeting 1
Section 2 Annual Meetings 1
Section 3 Notice of Annual Meeting 1
Section 4 List of Stockholders 2
Section 5 Special Meetings 2
Section 6 Notice of Special Meetings 2
Section 7 Business at Special Meetings 2
Section 8 Quorum 2
Section 9 Voting 3
Section 10 Proxies 3
Section 11 Action by Written Consent 3
ARTICLE III Directors
- ----------- ---------
Section 1 Number and Term 4
Section 2 Removal; Vacancies 4
Section 3 Powers 4
Section 4 Place of Meetings; Telephone Meetings 4
Section 5 First Meeting 5
Section 6 Regular Meetings 5
Section 7 Special Meetings 5
Section 8 Quorum 5
Section 9 Action by Written Consent 5
Section 10 Committees 5
Section 11 Minutes of Committees 6
Section 12 Compensation 6
Section 13 Conflict of Interest 6
Section 14 Nominations 7
ARTICLE IV Notices
- ---------- -------
Section 1 Notice 8
Section 2 Waiver of Notice 8
</TABLE>
-i-
<PAGE> 29
<TABLE>
<CAPTION>
PAGE
ARTICLE V Officers ----
- --------- --------
<S> <C> <C>
Section 1 Officers 8
Section 2 Additional Officers 8
Section 3 Compensation 8
Section 4 Term of Office; Removal; Vacancies 8
Section 5 Duties of Officers 9
ARTICLE VI Certificates of Stock
- ---------- ---------------------
Section 1 Certificates 10
Section 2 Signatures 11
Section 3 Lost, Stolen or Destroyed Certificates 11
Section 4 Transfer of Stock 11
Section 5 Record Date 11
Section 6 Registered Stockholders 11
ARTICLE VII General Provisions
- ----------- ------------------
Section 1 Dividends 12
Section 2 Reserves 12
Section 3 Annual Statement 12
Section 4 Checks 12
Section 5 Fiscal Year 12
Section 6 Seal 12
Section 7 Contracts 12
Section 8 Voting of Corporation's Securities 13
ARTICLE VIII Amendments
- ------------ ----------
Section 1 Procedure 13
</TABLE>
-ii-
<PAGE> 30
AMENDED AND RESTATED
BY-LAWS
of
UNI-MARTS, INC.
A Delaware Corporation
ARTICLE I
---------
Offices
-------
Section 1: Registered Office. The registered office shall be 1013
Centre Road, Wilmington, Delaware.
Section 2: Additional Offices. The Corporation may also have offices
at such other places, both within and without the State of Delaware, as the
Board of Directors may from time to time determine, or the business of the
Corporation may require.
ARTICLE II
----------
Meetings of Stockholders
------------------------
Section 1: Place of Meeting. All meetings of the stockholders for
the election of directors shall be held in the borough of State College,
Commonwealth of Pennsylvania, or at such other place, within or without the
State of Delaware, as may be fixed from time to time by the Board of Directors.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as such is stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2: Annual Meetings. Annual meetings of stockholders shall be
held at such time and place as may be specified in the notice thereof, at which
they shall elect, by a plurality vote, a Board of Directors and transact such
other business as may properly be brought before the meeting.
Section 3: Notice of Annual Meeting. Unless otherwise required by
law, written notice of the annual meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting.
-1-
<PAGE> 31
Section 4: List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at said meeting arranged in alphabetical order and showing the
address of and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a location within the borough of
State College where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not specified, at the place where said meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting, during the whole time thereof, and subject to the inspection of
any stockholder who is present.
Section 5: Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board, and
shall be called by the Secretary at the request, in writing, or a majority of
the Board of Directors, or at the request in writing of stockholders owning
capital stock representing at least a majority of the voting power of the entire
capital stock of the Corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6: Notice of Special Meetings. Unless otherwise required by
law, written notice of a special meeting of stockholders, stating the date,
time, place and purpose or purposes for which the meeting is called, shall be
given to each stockholder entitled to vote at such meeting not less than ten
(10) nor more than sixty (60) days before the date of the meeting.
Section 7: Business at Special Meetings. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.
Section 8: Quorum. The holders of record of capital stock
representing no less than a majority of the total number of shares issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy or power of attorney, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Certificate of Incorporation. At any meeting of the
stockholders, whether annual or special, or any adjournment thereof, including
any such meeting at which a quorum shall not be present or represented, the
majority of the stockholders entitled to vote thereat, present in person or
represented by proxy or power of attorney, shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
-2-
<PAGE> 32
Section 9: Voting. (a) Except as otherwise may be provided by the
Certificate of Incorporation or by these By-Laws, at every meeting of the
stockholders, each stockholder shall be entitled to one (1) vote for each share
of stock which is registered in his or her name on the record date for the
meeting.
(b) When a quorum is present at any meeting, the vote of a majority
of the voting power of stock, present in person or represented by proxy, shall
decide any question brought before such meeting, unless the question is one upon
which, by express provision of these By-Laws or of the statutes or of the
Certificate of Incorporation, a different vote is required, in which case such
express provision shall govern and control the decision of such questions.
(c) A holder of Common Stock shall have one (1) vote per share for
each such share of stock registered to such holder at the time of the closing of
the transfer books of the Corporation or on the date fixed as the record date
for any meeting, unless otherwise provided by these By-Laws. In case the
transfer books of the Corporation shall not have been closed and no date shall
have been fixed as a record date for the determination of the stockholders
entitled to vote, those persons of record as of the close of business on the day
next preceding the date on which notice is given, and not others, shall be
entitled to vote at said meeting, provided that any applicable provisions of law
respecting publication of such record date be observed.
Section 10: Proxies. Unless otherwise provided in the Certificate of
Incorporation, each stockholder having the right to vote shall, at every meeting
of the stockholders, be entitled to vote in person or by proxy appointed by
instrument in writing subscribed to by such stockholder or by his duly
authorized attorney, but no proxy shall be voted on or acted upon after three
(3) years from its date.
Section 11: Action by Written Consent. Unless otherwise provided in
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which may
be taken without a meeting, may be taken without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
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<PAGE> 33
ARTICLE III
-----------
Directors
---------
Section 1: Number and Term. The number of directors which will
constitute the whole Board shall be not less than three (3), the exact number to
be determined by a resolution of the Board of Directors. At the annual election
of directors to be held at the annual meeting of stockholders in Fiscal Year
1987, the directors shall be divided into three (3) classes, as nearly equal as
possible, known as Class I, Class II, and Class III. The initial directors of
Class I shall serve until the end of the annual meeting of stockholders held in
February 1988, at which time the directors of Class I shall be elected for a
term of three (3) years and shall thereafter be elected every three (3) years
for three (3) year terms. The initial directors of Class II shall serve until
the end of the annual meeting of stockholders held in February 1989, at which
time the directors of Class II shall be elected for a term of three (3) years
and shall thereafter be elected every three (3) years for three (3) year terms.
The initial directors of Class III shall serve until the end of the annual
meeting of stockholders held in February 1990, at which time the directors of
Class III shall be elected for a term of three (3) years and shall thereafter be
elected every three (3) years for three (3) year terms. Each director elected
shall hold office until his or her successor is elected and qualified.
Directors need not be stockholders.
Section 2: Removal; Vacancies. (a) The holders of the Common Stock
shall be entitled to vote on the removal, with or without cause, of any
director.
(b) Any vacancy in the office of a director either (i) may be filled
by the vote of the holders of Common Stock or (ii) if applicable law permits,
any such vacancy may be filled by the remaining directors then in office, even
though less than a quorum, or by a sole remaining director. Any director
elected by the stockholders or the Board of Directors to fill a vacancy shall
serve until the end of the full unexpired term of the vacating director and
until his or her successor has been elected and has been qualified. If
permitted by applicable law, the Board of Directors may increase the number of
directors, and any vacancy so created may be filled by the Board of Directors by
a majority vote of all directors then in office.
Section 3: Powers: The business and affairs of the Corporation shall
be managed by or under the direction of its Board of Directors, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 4: Place of Meetings; Telephone Meetings. The Board of
Directors of the Corporation may hold meetings, both regular and special, either
within or without the State of Delaware.
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<PAGE> 34
Any director may participate in any meeting of the Board of Directors
or a committee of the Board of Directors by means of conference telephone or
similar communications equipment by means of which all persons participating in
such meeting can hear each other, and participation in a meeting pursuant to the
provision of this Section 4 shall constitute presence in person at such meeting.
Section 5: First Meeting. The first meeting of each newly elected
Board of Directors shall be held at such time and place as shall be fixed by the
Board of Directors, and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present.
Section 6: Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board.
Section 7: Special Meetings. Special meetings of the Board may be
called by the Chairman of the Board by one day's notice to each director, either
personally or by mail or by telegram or by telephone. Special meetings shall be
called by the Secretary in like manner and on like notice on the written request
of 40% of the directors.
Section 8: Quorum. At all meetings of the Board, a majority of the
directors then constituting the total number of the Board, but not less than two
(2) directors, except when a board of one director is authorized and acting,
then one (1) director shall constitute a quorum for the transaction of business,
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the Certificate of
Incorporation. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9: Action by Written Consent. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board or
of such committee, as the case may be, consent thereto in writing and such
written consent is filed with the minutes of proceedings of the Board or
committee.
Section 10: Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise the powers and authority of the Board of Directors in the management of
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<PAGE> 35
the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in any resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in Section 151(a) of the
General Corporation Law of the State of Delaware, or any successor provision
thereto, fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation, or the conversion into or the exchange of such shares for shares of
any other class or classes, or any other series of the same or any other class
of classes of stock of the Corporation), adopting the agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of the State of
Delaware, or any successor provision thereto. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. Notwithstanding anything else to
the contrary contained herein, all functions of the Board of Directors of the
Corporation with respect to the executive officers of the Corporation,
including, without limitation, the authority to engage and discharge such
executive officers and the responsibility of supervising such executives in the
discharge of their duties, are hereby delegated to Henry D. Sahakian, or the
current Chairman of the Board.
Section 11: Minutes of Committees. Each committee may keep regular
minutes of its meetings and report the same to the Board of Directors.
Section 12: Compensation. Unless otherwise restricted by the
Certificate of Incorporation, the Board of Directors shall have the authority to
fix the compensation of directors. The directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors, and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.
Section 13: Conflict of Interest. No contract or other transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association
or other organization in which one or more of the Corporation's directors or
officers are directors or officers or have a financial interest, shall be void
or voidable solely for such reason, or solely because such director or
directors or officer or officers are present at or participate in the meeting
of the Board of Directors or a committee thereof which authorized or approves
the contract or transaction, or solely because his or their votes are counted
for such purpose, if (1) the material facts as to his or their relationships
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<PAGE> 36
or interests and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the material facts as to his or their
relationships or interests as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon, and the contract
or transaction is specifically approved in good faith by a vote of the
stockholders; or (3) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof, or the stockholders.
Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
Section 14. Nominations. Nominations for election to the Board of
Directors may be made by the Board of Directors or by any stockholder of any
outstanding class of common stock of the Corporation entitled to vote for
election of directors. Nominations, other than those made by or on behalf of
the Board of Directors of the Corporation, shall be made in writing and shall be
delivered or mailed to the Secretary of the Corporation not less than ten (10)
days nor more than seventy-five (75) days prior to any meeting of stockholders
called for the election of directors, provided, however, that if less than ten
(10) days' notice of the meeting is given to stockholders, such nomination shall
be mailed or delivered to the Secretary of the Corporation not later than the
close of business on the seventh day following the day on which the notice of
the meeting was mailed. Such notification shall contain the following
information to the extent known to the notifying stockholder(s): (a) the name
and address of each proposed nominee; (b) the principal occupation of each
proposed nominee; (c) the total number of shares of common stock of the
Corporation that will be voted for each proposed nominee by the notifying
stockholder(s); (d) the name and residence address of the notifying
stockholder(s); and (e) the number of shares of common stock of the Corporation
owned by the notifying stockholder(s). Nominations not made in accordance
herewith shall be disregarded by the chairman of the meeting and votes cast for
such nominee shall not be counted.
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<PAGE> 37
ARTICLE IV
----------
Notices
-------
Section 1: Notice. Whenever, under the provisions of the statutes or
of the Certificate of Incorporation or of these By-Laws, notice is required to
be given to any director or stockholder, it shall not be construed to mean
personal notice only, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given by telegram or telephone.
Section 2: Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE V
---------
Officers
--------
Section 1: Officers. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a Chairman of the Board of Directors, a
President, an Executive Vice President and Chief Financial Officer, an Executive
Vice President and a Secretary. The Board of Directors may also choose
additional vice presidents and one or more assistant secretaries. Any number of
offices may be held by the same person unless the Certificate of Incorporation
otherwise provides.
Section 2: Additional Officers. The Board of Directors may appoint
such other officers and agents as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
Section 3: Compensation. The salaries of all officers and agents of
the Corporation shall be fixed by the Board of Directors or a committee thereof.
Section 4: Term of Office; Removal; Vacancies. The officers of the
Corporation shall serve at the pleasure of the Board of Directors and shall hold
office until their successors are chosen and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring
in any office of the Corporation shall be filled by the Board of Directors.
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<PAGE> 38
Section 5: Duties of Officers. The officers of the Corporation, if
and when elected by the Board of Directors of the Corporation, shall have the
following duties:
(a) Chairman of the Board. The Chairman of the Board shall be the
chief executive officer of the Corporation and shall, subject to the direction
of the Board of Directors, supervise and control the business and affairs of the
Corporation. He shall, when present, preside at all meetings of the
stockholders and of the Board of Directors. He may sign certificates for shares
of the Corporation and deeds, mortgages, bonds, contracts or other instruments
on behalf of the Corporation, except where required by law to be otherwise
signed and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation. In general, he shall perform all duties incident to the office
of Chairman of the Board and such other duties as may be prescribed by the Board
of Directors.
(b) President. The President shall be the chief operating officer of
the Corporation and shall have general management of all operating areas of the
business of the Corporation, including convenience store operations and
petroleum operations. The President of the Corporation shall carry into effect
the orders of the Chairman of the Board. The President may sign deeds,
mortgages, bonds, contracts or other instruments on behalf of the Corporation,
except where required by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation. In
general, he shall perform all duties incident to the office of President and
such other duties as may be prescribed by the Board of Directors or the Chairman
of the Board.
(c) Executive Vice President and Chief Financial Officer. The
Executive Vice President and Chief Financial Officer shall be the principal
financial officer and chief accounting officer of the Corporation and shall have
general and active management of all financial, accounting and administrative
areas of the business of the Corporation, including administration, finance,
accounting and internal audit and such other duties as may be prescribed by the
Board of Directors or the Chairman of the Board. The Executive Vice President
and Chief Financial Officer may sign deeds, mortgages, bonds, contracts or other
instruments on behalf of the Corporation, except where required by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation.
(d) Executive Vice President. The Executive Vice President shall be
responsible for the day-to-day management of all operating areas of the business
of the Corporation, including convenience store operations and petroleum
division operations and such other duties as may be prescribed by the Board of
Directors, Chairman of the Board or President.
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<PAGE> 39
(e) Other Vice Presidents. Additional vice presidents appointed by
the Board of Directors shall perform such other duties and have such other
powers as the Board of Directors, Chairman of the Board, President or Executive
Vice President and Chief Financial Officer may from time to time prescribe.
(f) Secretary. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record all the proceedings
of the meetings of the stockholders and of the Board of Directors in a book to
be kept for that purpose, and shall perform like duties for the standing
committees when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors,
the Chairman of the Board or the Executive Vice President and Chief Financial
Officer, under whose supervision he shall be. He shall have custody of the
corporate seal of the Corporation and he, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it, and when so affixed,
it may be attested by his signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature.
(g) Assistant Secretaries. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries, in the order determined by the Board
of Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary, or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
Secretary, and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
ARTICLE VI
----------
Certificates of Stock
---------------------
Section 1: Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate, signed by or in the name of the
Corporation, by the Chairman of the Board or the President or a Vice President
and the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designations, preferences, and relative, participating,
optional or other special rights of each class of stock or series thereof, and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock, provided that, except as otherwise provided in Section 202 of the
General Corporation Law of the State of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish, without charge, to each
stockholder who so requests, the powers, designations, preferences and
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<PAGE> 40
relative, participating, optional or other special rights of each class of stock
or series thereof, and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2: Signatures. Any of or all the signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 3: Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed upon the making of an affidavit of that fact
by the person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4: Transfer of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares, duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction upon its books.
Section 5: Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any right, or entitled to exercise any rights in
respect to any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6: Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends and to vote as such owner, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of the
State of Delaware.
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<PAGE> 41
ARTICLE VII
-----------
General Provisions
------------------
Section 1: Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provision of the Certificate of
Incorporation.
Section 2: Reserves. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Directors form time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Directors shall think conducive to the interest of
the Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
Section 3: Annual Statement. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholder when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
Section 4: Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 5: Fiscal Year. The fiscal year of the Corporation shall end
on September 30.
Section 6: Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Delaware." The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
Section 7: Contracts. The Board of Directors may authorize any
officer, agent or employee to enter into any contract, instrument or agreement
on behalf of the Corporation, and the authority granted may be general or
confined to specific instances. Except as provided in this section or as
authorized by the Board of Directors, no officer, agent or employee, other than
the Chairman of the Board, the President, any Vice President or the Secretary,
shall have any power or authority to bind the Corporation by any contract,
instrument or agreement, to pledge its credit, or to render it liable, for any
amount.
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<PAGE> 42
Section 8: Voting of Corporation's Securities. Unless otherwise
ordered by the Board of Directors, the Chairman of the Board, the President or
any Vice President, or such other officer as may be designated by the Board of
Directors to act in the absence of the Chairman of the Board, the President or
any Vice President, shall have full power and authority, on behalf of the
Corporation, to attend and to act and to vote, and to execute a proxy or proxies
empowering others to attend and to act and to vote, at any meetings of security
holders of any corporation in which the Corporation may hold securities, and at
such meetings the Chairman of the Board or such other officer of the
Corporation, or such proxy, shall possess and may exercise any and all rights
and powers incident to the ownership of such securities, and which as the owner
thereof, the Corporation might have possessed and exercised if present. The
Secretary or an Assistant Secretary may affix the corporate seal to any such
proxy or proxies so executed by the Chairman of the Board, or such other
officer, and attest the same. The Board of Directors, by resolution from time
to time, may confer like powers upon any other person or persons.
ARTICLE VIII
------------
Amendments
----------
Section 1: Procedure. These By-Laws may be altered, amended or
repealed, or new by-laws may be adopted by the Board of Directors at any regular
meeting of the Board of Directors or at any special meeting of the Board of
Directors if notice of such alteration, amendment, repeal or adoption of new By-
Laws be contained in the notice of such special meeting. No change of the time
or place of the meeting for election of directors shall be made within sixty
(60) days next before the day on which such meeting is to be held, and in case
of any change of such time or place, notice thereof shall be given to each
stockholder in person or by letter mailed to his last known post office address
at least twenty (20) days before the meeting is held.
THE ABOVE AND FOREGOING By-Laws of Uni-Marts, Inc. were adopted by the
Board of Directors on October 17, 1994 and became effective on the 23rd day of
February, 1995.
/S/ HARRY A. MARTIN /S/ HENRY D. SAHAKIAN
- --------------------------------- ----------------------------------------
Harry A. Martin, Secretary Henry D. Sahakian, Chairman of the Board
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<PAGE> 43
UNI-MARTS, INC.
AMENDED AND RESTATED
EQUITY COMPENSATION PLAN
------------------------
1. PURPOSE
-------
The Uni-Marts, Inc. Equity Compensation Plan (the "Plan") is
intended to be an incentive and to encourage stock ownership by
employees and non-employee directors of the Board (the "Directors")
of Uni-Marts, Inc., a Delaware corporation (the "Corporation"), or
any of its subsidiary corporations (the "Subsidiaries"), as defined
in Section 424(f) of the Internal Revenue Code of 1986, as amended
(the "Code"), so that designated employees and Directors may
acquire or increase their proprietary interest in the success of
the Corporation and its Subsidiaries, and so that they may be
encouraged to remain employees or Directors of the Corporation or
its Subsidiaries. The options issued pursuant to the Plan may be
incentive stock options within the meaning of Section 422 of the
Code ("Incentive Stock Options") or nonqualified stock options
("Nonqualified Stock Options"). To the extent that any option does
not qualify as an Incentive Stock Option, it shall constitute a
separate Nonqualified Stock Option.
2. ADMINISTRATION
--------------
The Plan shall be administered by a committee (the
"Committee") appointed by the Board of Directors of the Corporation
(the "Board"). The Committee shall consist of not less than two
Board members. No Committee member may have received, within the
preceding one-year period, an option under the Plan or an option or
similar award under any other Corporation plan where such award was
made on a discretionary basis. Any Committee member who does not
satisfy the foregoing requirement shall not serve in any capacity
in administering the Plan until one year has elapsed from the date
such option or award was granted. The Board may from time to time
remove members from, or add members to, the Committee. Vacancies
on the Committee, howsoever caused, shall be filled by the Board.
The Committee shall select one of is members as Chairman and shall
hold meetings at such times and places as it may determine. Acts
by a majority of the Committee at a meeting at which a quorum is
present, or acts reduced to or approved in writing by a majority of
the members of the Committee, shall be the valid acts of the
Committee. The Committee shall from time to time, in its
discretion, designate the employees who shall be granted options
and the amount of stock to be optioned to each.
The interpretation and construction of the Committee of any
provisions of the Plan or of any option or stock grant issued under
it shall be final. No member of the Committee shall be liable for
any action or determination made in good faith with respect to the
Plan or any option or stock grant issued under it.
<PAGE> 44
3. ELIGIBILITY
-----------
The persons who shall be eligible to receive options shall be
employees and Directors of the Corporation or its Subsidiaries;
provided, however, that Directors may only receive Nonqualified
Stock Options pursuant to Section 5(l). In addition, Directors
shall receive stock grants pursuant to Section 7. An optionee may
hold more than one option, but only in accordance with the terms
and subject to the restrictions hereinafter set forth.
4. STOCK
-----
The stock subject to the options or stock grants issued
hereunder shall be shares of the Corporation's authorized or
reacquired common stock (the "Common Stock"). The aggregate number
of shares which may be issued under options or stock grants shall
not exceed 855,000 shares of Common Stock. The limitation
established by the preceding sentence shall be subject to
adjustment as provided in Section 5(f). During the term of the
Plan, the maximum aggregate number of shares of Common Stock that
shall be subject to options granted under the Plan to any single
optionee shall not exceed 50% of the aggregate limitation specified
above.
In the event that any outstanding option under the Plan for
any reason expires or is terminated, the shares of Common Stock
allocable to the unexercised portion of such option may again be
subject to an option under the Plan.
5. TERMS AND CONDITIONS OF OPTIONS
-------------------------------
All options shall be subject to the terms and conditions set
forth herein and to those other terms and conditions consistent
with this Plan as the Committee deems appropriate as are specified
in writing by the Committee to the optionee (the "Grant Letter").
The Committee shall approve the form and provisions of each Grant
Letter to a designated optionee.
(a) Number of Shares. Each Grant Letter shall state the
number of shares to which it pertains.
(b) Option Price. Each Grant Letter shall state the
option price, which shall not be less than 100% of the fair market
value of the shares of Common Stock of the Corporation on the date
of the granting of the option. During such time as such stock is
not listed upon an established stock exchange or traded in the
over-the-counter market, the fair market value per share shall be
determined by the Committee at least annually by relying upon
whatever evidence it deems appropriate which may include, but need
not be limited to, recent sales of the Common Stock, opinions of
professional appraisers and recent sales of comparable shares of
other companies. If the Common Stock is traded in the over-the-
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<PAGE> 45
counter market, the fair market value shall be the mean between the
dealer "bid" and "ask" prices of the Common Stock in the New York
over-the-counter market on the day the option is granted, as
reported by the National Association of Securities Dealers, Inc.
If the Common Stock is listed upon an established stock exchange or
exchanges, the fair market value shall be the highest closing price
of the Common Stock on such stock exchange or exchanges on the day
the option is granted, or if no sale of the Common Stock shall have
been made on any stock exchange on that day, on the next preceding
day on which there was a sale of such stock. Subject to the
foregoing, the Committee in fixing the option price shall have full
authority and discretion.
(c) Medium and Time of Payment. Unless otherwise
specified in the Grant Letter, the option price shall be payable in
United States dollars upon the exercise of the option and may be
paid in cash or by check.
(d) Term and Exercise of Options. Unless otherwise
specified in the Grant Letter, no option shall be exercisable
either in whole or in part prior to 12 months from the date it is
granted. Each Grant Letter shall state the date on which the
option shall expire and no option shall be exercisable after ten
years from the date on which it is granted. Options may only be
exercised by an optionee for so long as he is an employee of the
Corporation or its Subsidiaries, except as otherwise provided in
Section 5(e).
The Grant Letter may provide that the option may be
exercisable in installments rather than exercisable immediately in
full. In such case, subject to the right of cumulation provided in
the last sentence of this subsection, during each twelve-month
period commencing 12 months from the date of the granting of the
option, each option shall be exercisable as to not more than that
percentage of the total number of shares covered thereby as the
Committee shall specify in the Grant Letter, until all shares
covered by the option shall have been purchased. The Committee may
provide, in the case of an option not immediately exercisable in
full, for the acceleration of the time at which the option may be
exercised.
Not less than 100 shares may be purchased at any one time
unless the number purchased is the total number at the time
purchasable under the option. During the lifetime of the optionee,
the option shall be exercisable only by him and shall not be
assignable or transferable by him and no other person shall acquire
any rights therein. To the extent not exercised, installments
shall accumulate and be exercisable, in whole or in part, in any
subsequent period, but not later than ten years from the date the
option is granted.
-3-
<PAGE> 46
(e) Termination of Employment, Death or Disability.
----------------------------------------------
(i) In the event the optionee
during his lifetime ceases to be an
employee of the Corporation or a
Subsidiary for any reason other
than death, any option which is
otherwise exercisable by the
optionee shall immediately
terminate; provided, however, that
in the case of an optionee who is
disabled within the meaning of
Section 22(e)(3) of the Code, such
option shall be exercisable for a
nine-month period beginning on the
date on which he ceases to be an
employee. Whether authorized leave
of absence or absence for military
or governmental service shall
constitute termination of
employment, for the purposes of the
Plan, shall be determined by the
Committee, which determination,
unless overruled by the Board,
shall be final and conclusive.
(ii) In the event of the death of
an optionee while he is an employee
of the Corporation or a Subsidiary,
any option which was otherwise
exercisable by the optionee at the
date of death may be exercised by
his personal representative at any
time prior to the expiration of
nine months from the date of death,
but in any event no later than the
date of expiration of the option
exercise period.
(f) Recapitalization. Subject to any required action by
the stockholders, the number of shares of Common Stock covered by
each outstanding option, and the price per share thereof in each
such option, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock of the
Corporation resulting from a subdivision or consolidation of shares
or the payment of a stock dividend (but only on the Common Stock)
or any other increase or decrease in the number of such shares
effected without receipt of consideration by the Corporation.
Subject to any required action by the stockholders, if the
Corporation shall be the surviving corporation in any merger or
consolidation, each outstanding option shall pertain to and apply
-4-
<PAGE> 47
to the securities to which a holder of the number of shares of
Common Stock subject to the option would have been entitled. A
dissolution or liquidation of the Corporation or a merger or
consolidation in which the Corporation is not the surviving
corporation shall cause each outstanding option to terminate;
provided that each optionee shall, in such event, if a period of 12
months from the date of the granting of the option shall have
expired, have the right immediately prior to such dissolution or
liquidation, or merger or consolidation in which the Corporation is
not the surviving corporation, to exercise his option in whole or
in part without regard to the installment provision of Section 5(d)
of the Plan. Notwithstanding the above provisions, an option will
not terminate if assumed by the surviving or acquiring corporation,
or its parent, upon a merger or consolidation and, with respect to
an Incentive Stock Option, the assumption of the option occurs
under circumstances which are not deemed a modification of the
option within the meaning of Sections 424(a) and 424(h)(3)(A) of
the Code.
In the event of a change in the Common Stock of the
Corporation as presently constituted, which is limited to a change
of all of its authorized shares with par value into the same number
of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be the
Common Stock within the meaning of the Plan.
To the extent that the foregoing adjustments relate to stock
or securities of the Corporation, such adjustments shall be made by
the Committee, whose determination in that respect shall be final,
binding and conclusive, provided that each Incentive Stock Option
granted pursuant to this Plan shall not be adjusted in a manner
that causes the option to fail to continue to meet the requirements
set forth in Section 422 of the Code.
Except as hereinbefore expressly provided in this Section
5(f), the optionee shall have no rights by reason of any
subdivision or consolidation of shares of stock of any class or the
payment of any stock dividend of any other increase or decrease in
the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger or consolidation or spin-off of
assets or stock of another corporation, and any issue by the
Corporation of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect,
and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to the
option.
The grant of an option pursuant to the Plan shall not affect
in any way the right or power of the Corporation to make
adjustments, reclassification, reorganizations or changes of its
capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or any part of its
business or assets.
-5-
<PAGE> 48
(g) Rights as a Stockholder. An optionee or a
transferee of an option shall have no rights as stockholder with
respect to any shares covered by his option until the date of the
issuance of stock certificate to him for such shares. No
adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or
other rights for which the record date is prior to the date such
stock certificate is issued, except as provided in Section 5(f)
hereof.
(h) Modification, Extension and Renewal of Options.
Subject to the terms and conditions and within the limitations of
the Plan, the Committee may modify, extend or renew outstanding
options granted under the Plan, or accept the surrender of
outstanding options (to the extent not theretofore exercised). The
Committee shall not, however, modify any outstanding options so as
to specify a lower price or accept the surrender of outstanding
options and authorize the granting of new options in substitution
therefore specifying a lower price. Notwithstanding the foregoing,
however, no modification of an option shall, without the consent of
the optionee, alter or impair any rights or obligations under any
option theretofore granted under the Plan.
(i) Investment Purpose. Each option under the Plan
shall be granted on the condition that the purchases of stock
thereunder shall be for investment purposes and not with a view to
resale or distribution, except that in the event the stock subject
to such option is registered under the Securities Act of 1933, as
amended, or in the event a resale of such stock without such
registration would otherwise be permissible, such condition shall
be inoperative if, in the opinion of counsel for the Corporation
such condition is not required under the Securities Act of 1933 or
any other applicable law, regulation or rule of any governmental
agency.
(j) Covenant Not to Compete; Confidentiality Agreement.
The Grant Letter may provide that, as a condition of the optionee's
acceptance of the option, the optionee shall agree to be bound by a
covenant not to compete and/or a confidentiality agreement with the
Corporation containing such terms as the Committee and the Board
shall deem advisable.
(k) Other Provisions. The Grant Letter shall contain
such other provisions, including, without limitation, restrictions
upon the exercise of the option or the transfer of the shares
received upon an exercise, as the Committee shall deem advisable.
The Grant Letter shall contain such limitations and restrictions
upon the exercise of the option as shall be necessary in order that
such option will be an incentive stock option as defined in Section
422 of the Code. In addition to the other powers granted to the
Committee under this Plan, the Committee shall have the discretion
to include in any option grant the right of the optionee (i) to pay
-6-
<PAGE> 49
for the stock with stock of the corporation granting the option,
and/or (ii) to receive a loan from the Corporation to pay for the
stock, with such terms as shall not cause the option to become
disqualified as an "incentive stock option" as defined in Section
422 of the Code and/or (iii) to receive such assistance from the
Corporation in obtaining a loan from a financial institution as is
necessary in the sole discretion of the Committee.
(l) Option Grants to Directors. On the day of the
annual meeting of stockholders (the "Date of Grant"), beginning
February 23, 1995, each Director shall receive a Nonqualified Stock
Option (a "Formula Grant Option") to purchase 2,000 shares of
Common Stock of the Corporation. The option price of a Formula
Grant Option shall be equal to the fair market value of a share of
Common Stock on the Date of Grant, as determined under Section 5(b)
of the Plan. Formula Grant Options shall become exercisable one
year following the Date of Grant. Formula Grant Options shall have
a term of ten years after the Date of Grant, provided that the
optionee remains a Director or employee of the Corporation. Upon a
Director ceasing to be a Director for any reason other than death
or disability or as a result of becoming an employee of the
Corporation, such Director's Formula Grant Options shall
immediately terminate. In the event a Director ceases to be a
Director by reason of death or disability, such Director's Formula
Grant Options may thereafter be exercised in accordance with the
applicable provisions of Section 5(e) of the Plan. In the event a
Director ceases to be a Director by reason of his becoming an
employee of the Corporation and his employment with the Corporation
is subsequently terminated, such Director's Formula Grant Options
may thereafter be exercised in accordance with the provisions in
Section 5(e) of the Plan. Notwithstanding any other provision of
the Plan, this Section 5(l) may not be amended more than once every
six months, except for amendments necessary to conform the Plan to
changes in the provisions of, or the regulations relating to, the
Code.
6. INCENTIVE STOCK OPTION LIMITATIONS
----------------------------------
(a) Ten Percent Shareholders. Notwithstanding any other
provision herein, with respect to any Incentive Stock Option
granted to an individual who, at the time the option is granted,
possesses more than 10 percent of the total combined voting power
of all classes of stock of the Corporation (or of its parent or any
Subsidiary), the option price must be at least 110 percent of the
fair market value of the stock subject to the option and such
option by its terms must not be exercisable after the expiration of
5 years from the date such option is granted.
(b) Dollar Limitation. The aggregate fair market value
of the Common Stock on the date of grant with respect to which
Incentive Stock Options are exercisable for the first time by an
employee during any calendar year under the Plan or any other stock
option plan of the Corporation (or Subsidiary) shall not exceed
$100,000.
-7-
<PAGE> 50
(c) Prior Outstanding Option. No Incentive Stock Option
(for purposes of this Section 6(c) called the "New Option") granted
on or before December 31, 1986 shall be exercisable while there is
outstanding any Incentive Stock Option, which Incentive Stock
Option was granted, before the granting of the New Option, to the
person to whom the New Option is granted, to purchase stock in the
Corporation or in a corporation which, at the time the New Option
was granted, is a parent or subsidiary corporation (as those terms
are defined in Section 424 of the Code) of the Corporation, or is a
predecessor corporation of the Corporation, or such parent or
subsidiary corporation.
7. Stock Grants to Directors.
-------------------------
On the date of the annual meeting of stockholders beginning on
February 23, 1995, each Director shall receive a grant of shares of
Common Stock equal in value to 2/3 of the amount of the annual
retainer due to such Director for the fiscal year in which the Date
of Grant occurs. For purposes of determining the amount of shares
to be distributed, the fair market value of a share of Common Stock
shall be determined in accordance with the provisions of Section
5(b). Such shares shall not be sold for six months following the
Date of Grant. No other restrictions shall apply to such shares.
Notwithstanding any other provision of the Plan, this Section 7 may
not be amended more than once every six months, except for
amendments necessary to conform the Plan to changes of the
provisions of, or the regulations relating to, the Code.
8. TERMINATION OF THE PLAN
-----------------------
Options or stock grants may be issued pursuant to the Plan
from time to time until September 25, 1996, at which time the Plan
shall terminate unless terminated earlier by the Board or unless
extended by the Board with the approval of the stockholders.
9. INDEMNIFICATION OF COMMITTEE
----------------------------
In addition to such other rights of indemnification as they
may have as directors or as members of the Committee, the members
of the Committee shall be indemnified by the Corporation against
the reasonable expenses, including attorneys' fees actually and
necessarily incurred in connection with any appeal therein, to
which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any
option granted or stock grant issued thereunder, and against all
amounts paid by them in settlement thereof (provided such
settlement is approved by independent legal counsel selected by the
Corporation) or paid by them in satisfaction of a judgment in any
such action, suit or proceeding except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that
such Committee member is liable for negligence or misconduct in the
performance of his duties; provided that within 60 days after
-8-
<PAGE> 51
institution of any such action, suit or proceeding the Committee
member shall in writing offer the Corporation the opportunity, at
its own expense, to handle and defend the same.
10. AMENDMENT OF THE PLAN
---------------------
The Board may, insofar as permitted by law, from time to time,
suspend or discontinue the Plan or revise or amend it in any
respect whatsoever except that without approval of the
stockholders, no such revision or amendment shall change the number
of shares subject to the Plan (or the individual limit for any
single optionee), change the designation of the class of employees
eligible to receive options or decrease the price at which options
may be granted. Furthermore, the Plan may not, without the
approval of the stockholders, be amended in any manner that will
cause Incentive Stock Options issued under it to fail to meet the
requirements set forth in Section 422 of the Code.
11. APPROVAL BY OUTSIDE DIRECTORS
-----------------------------
The Plan is subject to and no option shall be exercisable
hereunder until after approval of the Plan and option by a
compensation committee (the "Compensation Committee") appointed by
the Board which is comprised solely of two or more directors who
are not (i) presently employees of the Corporation (or related
entities); (ii) former employees still receiving compensation for
prior services (other than benefits under a tax-qualified pension
plan); (iii) officers of the Corporation (or related entities) at
any time and (iv) currently receiving compensation for personal
services in a capacity other than as a director.
12. MISCELLANEOUS
-------------
(a) Application of Funds. The proceeds received by the
Corporation from the sale of Common Stock pursuant to options will
be used for general corporate purposes.
(b) No Obligation to Exercise Option. The granting of
an option shall impose no obligation upon the optionee to exercise
such option.
(c) Continued Employment. The grant of an option or
issuance of a stock grant pursuant to the Plan shall not be
construed to imply or to constitute evidence of an agreement,
express or implied, on the part of the Corporation or any
Subsidiary to continue to employ an employee or to continue the
services of a Director.
(d) Effective Date. The terms of this Plan shall be
effective as of January 1, 1993.
-9-
<PAGE> 52
(e) Compliance with Law. The Plan, the exercise of
options and the obligations of the Corporation to issue and
transfer shares of Common Stock shall be subject to all applicable
laws and to approvals by any governmental or regulatory agency as
may be required. The Committee may revoke the grant of any option
or the issuance of any stock grant if it is contrary to law or
modify an option or stock grant to bring it into compliance with
any valid and mandatory government regulation.
(f) Withholding of Taxes. The Corporation shall have
the right to require the optionee or other person receiving shares
to pay to the Corporation the amount of any taxes which the
Corporation is required to withhold.
(g) Issuance of Shares. No Common Stock shall be issued
or transferred hereunder unless and until all legal requirements
applicable to the issuance or transfer of such Common Stock have
been complied with to the satisfaction of the Committee.
UNI-MARTS, INC.
Attest:
/S/ HARRY A. MARTIN /S/ HENRY D. SAHAKIAN
- ------------------------------ ------------------------------
Harry A. Martin, Secretary Henry D. Sahakian, Chairman of
the Board of Directors
-10-
<PAGE> 53
AMENDMENT NO. 4 TO CREDIT AGREEMENT
-----------------------------------
This Amendment No. 4 to Credit Agreement (this "Amendment") is dated
as of March 27, 1995 by and among Uni-Marts, Inc., a Delaware corporation (the
"Borrower"), PNC Bank, National Association, CoreStates Bank, N.A. and the Daiwa
Bank, Ltd. (collectively, the "Banks") and PNC Bank, National Association, in
its capacity as agent (the "Agent") for the Banks.
WHEREAS, the Borrower, the Banks and the Agent are parties to a
certain Credit Agreement dated as of March 1, 1993 (as amended, the "Credit
Agreement"); and
WHEREAS, the Borrower, the Banks and the Agent wish to further amend
the Credit Agreement as set forth herein; and
WHEREAS, capitalized terms used herein and not otherwise defined
herein shall have the same meanings as given to them in the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. Section 1.01 (Certain Definitions) is hereby
amended by deleting the definition of the term "Expiration Date" in its entirety
and inserting in lieu thereof the following:
Expiration Date shall mean, with respect to the Revolving Credit
Commitment, February 28, 1997 or such later date determined
pursuant to Section 2.10 hereof.
2. Conditions of Effectiveness. The effectiveness of this Amendment
is expressly conditioned upon: (i) the Agent's receipt of counterparts of this
Amendment duly executed by the Borrower and each of the Banks; and (ii) the
Agent's receipt of a certificate signed by the Secretary or Assistant Secretary
of the Borrower, dated as of a date satisfactory to the Agent, certifying as to
all action by the Borrower to authorize execution, delivery and performance of
this Amendment.
3. Miscellaneous:
A. Except as expressly modified and amended by this Amendment,
the Credit Agreement and the other Loan Documents are hereby ratified and
confirmed in their entirety and shall remain in full force and effect.
B. The Borrower affirms the representations and warranties made
by it to the Banks in Article VI of the Credit Agreement as of the date hereof
(except representations and warranties which expressly relate to an earlier date
or time, which representations and warranties shall be true and correct on and
as of the specific dates or times referred to therein) and that the Borrower has
performed and is in compliance with all covenants contained in Article VIII or
elsewhere in the Credit Agreement. The Borrower represents and warrants to the
Banks that no Event of Default or Potential Default has occurred and is
continuing, and the execution and performance of this Amendment shall not give
rise to an Event of Default or Potential Default.
<PAGE> 54
C. The Borrower hereby agrees to reimburse the Agent and the
Banks on demand for all costs, expenses and disbursements relating to this
Amendment which are payable by the Borrower as provided in Sections 10.05 and
11.03 of the Credit Agreement.
4. Counterparts: This Amendment may be executed by different
parties hereto in any number of separate counterparts, each of which, when so
executed and delivered shall be an original and all of such counterparts shall
together constitute one and the same instrument.
5. Governing Law: This Amendment shall be deemed to be a contract
under the laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws of
the Commonwealth of Pennsylvania without regard to its conflict of laws
principles.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
UNI-MARTS, INC.
By: /S/ J. KIRK GALLAHER
---------------------------------
Title: Executive Vice President
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /S/ LOUIS R. CESTELLO
---------------------------------
Title: Assistant Vice President
CORESTATES BANK, N.A.
By: /S/ PAUL S. PHILLIPS
---------------------------------
Title: Vice President
THE DAIWA BANK, LTD.
By: /S/ GEORGE J. CERMINARA
---------------------------------
Title: Vice President
By: /S/ PAUL F. NOEL
---------------------------------
Title: Assistant Vice President
2.
<PAGE> 55
<TABLE>
EXHIBIT 11
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
(A) Computation of the weighted average number of shares of common stock outstanding
for the periods indicated:
<CAPTION>
QUARTERS ENDED MARCH 30, 1995 AND MARCH 31, 1994
WEIGHTED
SHARES OF NUMBER OF DAYS NUMBER OF SHARES
COMMON STOCK OUTSTANDING SHARE DAYS OUTSTANDING
------------ -------------- ---------- -----------
<S> <C> <C> <C> <C>
Quarter Ended March 30, 1995
- ----------------------------
December 30 - March 30 6,282,879 91 571,741,987
Shares Issued 16,192 Various 725,670
--------- -----------
6,299,071 572,467,657 6,290,853
========= =========== =========
Quarter Ended March 31, 1994
- ----------------------------
December 31 - March 31 6,895,773 91 627,515,344
Shares Issued 17,476 Various 1,123,019
--------- -----------
6,913,249 628,638,363 6,908,114
========= =========== =========
<CAPTION>
TWO QUARTERS ENDED MARCH 30, 1995 AND MARCH 31, 1994
WEIGHTED
SHARES OF NUMBER OF DAYS NUMBER OF SHARES
COMMON STOCK OUTSTANDING SHARE DAYS OUTSTANDING
------------ -------------- ---------- -----------
<S> <C> <C> <C> <C>
Period Ended March 30, 1995
- ---------------------------
October 1 - March 30 6,274,260 181 1,135,641,118
Shares Issued 24,811 Various 1,945,222
--------- -------------
6,299,071 1,137,586,340 6,285,007
========= ============= =========
Period Ended March 31, 1994
- ---------------------------
October 1 - March 31 6,881,449 182 1,252,423,654
Shares Issued 31,800 Various 3,298,729
--------- -------------
6,913,249 1,255,722,383 6,899,574
========= ============= =========
</TABLE>
<PAGE> 56
<TABLE>
(B) Computation of Earnings per Share:
Computation of earnings per share is net earnings divided by the weighted average
number of shares of common stock outstanding for the periods indicated:
<CAPTION>
QUARTER ENDED TWO QUARTERS ENDED
March 30, March 31, March 30, March 31,
1995 1994 1995 1994
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Net Earnings $ 561,237 $ 468,948 $1,904,763 $1,685,709
Weighted average number of
shares of common stock
outstanding 6,290,853 6,908,114 6,285,007 6,899,574
Earnings Per Share $ 0.09 $ 0.07 $ 0.30 $ 0.24
</TABLE>
-2-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE
SHEET DATED MARCH 30, 1995 AND THE STATEMENT OF EARNINGS FOR THE TWO QUARTERS
ENDED MARCH 30, 1995 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<CIK> 0000805020
<NAME> UNI-MARTS, INC.
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-1995
<PERIOD-START> OCT-01-1994
<PERIOD-END> MAR-30-1995
<CASH> 8,584,777
<SECURITIES> 337,698
<RECEIVABLES> 2,664,992
<ALLOWANCES> 105,700
<INVENTORY> 15,743,290
<CURRENT-ASSETS> 29,682,635
<PP&E> 92,494,027
<DEPRECIATION> 35,120,000
<TOTAL-ASSETS> 94,653,257
<CURRENT-LIABILITIES> 26,861,809
<BONDS> 32,791,853
<COMMON> 700,747
0
0
<OTHER-SE> 29,785,587
<TOTAL-LIABILITY-AND-EQUITY> 94,653,257
<SALES> 151,819,314
<TOTAL-REVENUES> 153,055,630
<CGS> 111,066,322
<TOTAL-COSTS> 111,066,322
<OTHER-EXPENSES> 0
<LOSS-PROVISION> ( 11,000)
<INTEREST-EXPENSE> 1,619,886
<INCOME-PRETAX> 3,005,763
<INCOME-TAX> 1,101,000
<INCOME-CONTINUING> 1,904,763
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,904,763
<EPS-PRIMARY> 0.30
<EPS-DILUTED> 0.30
</TABLE>
